Lacey Act Amendments Impact Wood Products

The Lacey Act is a law that prohibits trade in illegally sourced wildlife, fish and plants. Recent amendments to this law (aimed primarily at preventing illegal logging) expand the scope of products covered under the Lacey Act to include trees from natural or planted forest stands and any products made from wild plants or trees. The amendments also expand the range of applicable protections to include any tree or wild plant that is taken, possessed, transported or sold in violation of any U.S. or foreign law that protects plants. The amendment provisions, detailed below, will require increased due diligence by businesses who source and sell wood and wood products.

A. Prohibits Commerce in Illegally Sourced Plant Products

It is unlawful, effective May 22, 2008, to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant or plant product that was taken, possessed, transported or sold in violation of the laws of the U.S., a U.S. state or tribal land or any foreign country. (16 U.S.C. §3372(a).)

The definition of “plants” includes any wild member of the plant kingdom, including roots, seeds, trees from either natural or planted forest stands, and any products thereof; but does not include: (i) common cultivars (except trees); (ii) common food crops; (iii) scientific specimens of plant genetic material for research; or (iv) any plant that is to remain planted or to be replanted. (16 U.S.C. § 3371(f).)

“Common cultivars” and “common food crops” are to be defined via a joint rulemaking by the U.S. Departments of Agriculture and Interior.

Illegally sourced plants may include trees or wild plants that were: (i) stolen; (ii) taken from officially protected areas such as parks and reserves; (iii) taken without or contrary to required authorization; (iv) taken without payment of the applicable taxes, royalties or fees; or (v) shipped in violation of governing export or transshipment laws, such as log export bans. (16 U.S.C. § 3372(a).)

It is also unlawful under the Lacey Act to falsely identify or label any plant or plant product covered by the Act. (16 U.S.C. § 3372(d).)

B. Import Declaration

The import declaration must include the following information for each article or component of an article: (i) plant genus; (ii) species; (iii) country of harvest; (iv) quantity of plant material and unit of measure; and [if the product is paper or paperboard], (v) percent recycled material.

If the plant species or country of origin cannot be determined conclusively for a plant product, the declaration must include a list of possible plant species found in the product and/or a list of each country from which the plant may have been harvested.

Exclusions: Packaging material used exclusively to support, protect, or carry another item will not require an import declaration, unless the packaging material itself is being imported. (16 U.S.C. § 3372(f)(3).)

Enforcement: Although the import declaration requirement became effective December 15, 2008, enforcement of this requirement will not begin until the electronic system that will be used to collect the import declaration data is completed (anticipated April 1, 2009). Until that date, filing of the paper declaration form is voluntary. Once the electronic system is in place, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service (“APHIS”) and other agencies with Lacey Act authority will phase-in enforcement of import declaration requirements as specified in this proposed schedule: http://www.aphis.usda.gov/newsroom/content/2009/02/laceypln.shtml

C. Agencies Responsible for Implementation and Enforcement of the Lacey Act Amendments

APHIS is working with representatives from Customs and Border Protection, the U.S. Forest Service, U.S. Trade Representative, U.S. Department of Justice, U.S. Department of State, U.S. Fish and Wildlife Service, Council on Environmental Quality, and Department of Commerce to implement the new provisions. Link to APHIS website, http://www.aphis.usda.gov/plant_health/lacey_act/